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Supreme Court considers ‘forum shopping’ in divorce

By 7 February 2020divorce, Law news

The Supreme Court has heard two days of evidence in an appeal concerning ‘forum shopping’ in divorce.

The term ‘forum shopping’ refers to a common and much discussed practice in which one half of a multinational couple attempts to launch divorce proceedings in the jurisdiction with divorce legislation most favourable to them. In legal terminology, the Latin word ‘forum’ can mean both a specific court and a specific jurisdiction.

Villiers v Villiers concerns a writ of divorce filed in 2014 by a husband in Scotland. He and his wife had lived in the country for the majority of the time since their marriage in 1994. The relationship broke down in 2012 and the couple separated.

The following year the wife moved to England with the couple’s daughter. She filed a divorce petition in the English courts but later agreed to have this dismissed in favour of the petition in Scotland. Subsequently, however, she filed a second petition in England, this time for maintenance, under section 27 of the Matrimonial Causes Act 1973.

This states that:

“Either party to a marriage may apply to the court for an order under this section on the ground that the other party to the marriage (in this section referred to as the respondent)—

(a)has failed to provide reasonable maintenance for the applicant, or

(b)has failed to provide, or to make a proper contribution towards, reasonable maintenance for any child of the family.”

Spousal maintenance is much more limited in Scottish law than it is south of the border, and it is rarely paid on an ongoing basis.

The husband in Villiers v Villiers opposed this application, claiming that the English courts had no jurisdiction in the divorce  – but High Court Judge Mrs Justice Parker ruled against him. She ordered monthly maintenance of £2,500, as well as a payment of £3,000 to help with Mrs Villiers’ legal costs.

‘Legal services’ orders – or more fully, ‘legal services payment orders’ – have been available to the family courts since 2013. They allow judges to order the wealthier party in a divorce to fund the legal costs of their soon-to-be-former spouse.

‘Maintenance pending suit’ is a similar measure in which the wealthier party can be ordered to pay interim maintenance before a divorce is finalised. Applications for maintenance pending suit are assessed according to the needs of the applicant and the fairness of the proposed payments.

When the Court of the Appeal upheld Mrs Justice Parker’s ruling, the husband pressed on, escalating the case to the Supreme Court. The Justices were asked to consider whether or not the English courts really had the legal authority to rule on the case for maintenance despite the divorce proceedings taking place in Scotland.

The legal doctrine  in question is known as forum non conveniens. This Latin phrase, which translates as ‘the court which is not appropriate’, refers to those situations in which a court or jurisdiction decides that it is not the right venue for a particular case and so refers it on to another. Alternatively, a court or jurisdiction may decide that a different court or jurisdiction is not the appropriate venue and so decide to take on a disputed case itself.

An additional point for consideration by the Supreme Court Justices was whether or the divorce and the maintenance claims were “related actions” under the Maintenance Regulation 2011.

The Supreme Court’s decision will be announced at a later date.

The original Court of Appeal ruling can be read here.

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